WILLIAM DEW VS. S. COLUMBIA TERRACE, LLC (NEW JERSEY DIVISION ON CIVIL RIGHTS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3800-19
WILLIAM DEW,
Complainant-Appellant,
v.
S. COLUMBIA TERRACE, LLC,
Respondent-Respondent.
_____________________________
Submitted June 7, 2021 – Decided August 18, 2021
Before Judges Rothstadt and Susswein.
On appeal from the New Jersey Division on Civil
Rights, Department of Law and Public Safety, Docket
No. HB08WT-67679.
William Dew, appellant pro se.
Ira C. Kaplan, attorney for respondent S. Columbia
Terrace, LLC.
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Division on Civil Rights
(Donna Arons, Assistant Attorney General, of counsel;
James R. Michael, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant, William Dew, appeals from an April 29, 2020 final agency
decision rendered by the New Jersey Division on Civil Rights (the Division)
finding that there was no probable cause to support Dew's discrimination
complaint against his landlord, respondent S. Columbia Terrace (S. Columbia).
Dew alleged in his complaint that S. Columbia violated the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by discriminating against
him based on his race and the public assistance source of his rental payments.
After carefully reviewing the record in light of the arguments of the parties and
the applicable legal principles, we affirm substantially for the reasons explained
in the Division's comprehensive April 29, 2020 written opinion.
We briefly summarize the pertinent facts and procedural history. In May
2010, Dew first entered into a lease agreement for his apartment with Elmor
LLC (Elmor). His monthly rent for the apartment at that time was $1,390 and
he provided Elmor with a $1,390 security deposit. The monthly rent had
increased to $1,440 as of March 2015 when S. Columbia purchased the building
and assumed ownership. Dew's security deposit was lawfully depleted to cover
missing payments.
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In April 2018, Dew and S. Columbia signed a lease extension with a
monthly rent of $1,223. However, Dew did not pay the requisite $1,773 security
deposit, nor did he pay rent from January to April 2019. Despite these missed
payments, in April 2019, S. Columbia sent Dew a proposed lease extension for
the period of July 1, 2019 through June 30, 2020 with a monthly rent of $1,284 .
The security deposit for this proposed one-year extension was $1,926. Dew did
not sign the lease extension, nor did he remit the security deposit.
S. Columbia filed for eviction on June 20, 2019, seeking $7,338 in unpaid
rent from January through June 2019, $300 in late fees, and a security deposit
of $1,773, totaling $9,411. The court entered a judgment for possession and
then issued a warrant of removal. On July 22, 2019, the Superior Court judge
hearing the matter issued an order of removal set for August 5, 2019. On July
30, 2019, Dew was approved for temporary rental assistance (TRA) by the
Bergen County Board of Social Services (BCBSS). The TRA was effective
August 1, 2019 and covered Dew's rent arrearages from May through July 2019
as well as the late fees he accrued. The judge issued a hardship order staying
Dew's eviction until September 30, 2019.
On August 5, 2019, S. Columbia provided BCBSS with the documents
that were required for Dew's TRA. BCBSS agreed to cover Dew's rent through
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September 30, 2019, the date on which the hardship stay was set to expire. Dew
provided a cashier's check for $1,623 for the security deposit. He also received
a Section 8 voucher from the Edgewater Housing Authority. S. Columbia
refused to accept the voucher, explaining that it requires a one-year lease and
that it did not intend to renew the lease at the expiration of court-ordered
hardship stay.
Dew filed a complaint with the Division in October 2019, alleging that S.
Columbia's decision to not enter into a new lease agreement was a violation of
the LAD. Specifically, Dew alleged that S. Columbia discriminated against him
because he is African American and because he submitted a Section 8 voucher
as payment.
S. Columbia filed an answer to the complaint, contesting each of Dew's
specific allegations, responding with nine affirmative defenses, and raising a
counterclaim. S. Columbia asserted in its answer that Dew's claims were
malicious and frivolous, constituting "nothing but a misguided effort to allege
discrimination in an effort to avoid eviction. [Dew] has made such threats in
the past."
S. Columbia provided the Division with evidence to support its decision
to not enter into a new lease, including emails between Dew and S. Columbia's
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agents and a certification from the building property manager. She detailed
Dew's "campaign of threats and intimidation" including an email alleging that
S. Columbia committed theft.
The Division completed its investigation and issued its final agency
decision on April 29, 2020, concluding there was insufficient evidence to
support Dew's claim that he had been discriminated against based on race or
source of lawful income. The Division's opinion explained that "[S. Columbia]
provided evidence that it knew [Dew] was Black and still offered him lease
extensions for the first two years that it owned the subject property." The
Division's opinion further noted that Dew "did not offer any evidence supporting
a conclusion that [S. Columbia] factored race into its decision not to extend his
lease." As for discrimination based on source of income, the Division's decision
explained,
[t]he investigation revealed that [Dew] offered [S.
Columbia] a Section 8 voucher on August 5, 2019, fully
eight months after he had stopped paying rent. While
[Dew] obtained TRA in July 2019, which paid off his
rent arrearages, this action does not create an obligation
for [S. Columbia] to offer [Dew] a lease extension. Nor
does his attempt to use a Section 8 voucher mandate
that [S. Columbia] must continue renting the apartment
to him.
The Division concluded that S. Columbia was
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within its rights [to not] renew [Dew's] lease because
he failed to pay rent for 8 months, did not pay his
security deposit for the entirety of his tenancy . . . and
harassed its employee . . . just as it would be if [Dew]
committed other lease violations, like destroying the
property or making excess noise on a consistent basis.
Furthermore, the Division's decision noted that using a Section 8 voucher
does not entitle a complainant to a lease extension under the LAD; rather , the
LAD prohibits entities from taking adverse action against individuals trying to
use the voucher to pay part or all of their rent. The Division concluded, "nothing
in the LAD prevents a landlord from refusing to renew a lease with an individual
using a Section 8 voucher for legitimate non-discriminatory reasons." This
appeal followed.
The scope of our review of an administrative agency's final decision is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). The "final determination of
an administrative agency . . . is entitled to substantial deference." In re Eastwick
Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 541 (2016) (citing Univ.
Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Env't. Prot., 191 N.J. 38,
48 (2007)); see also In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)
(finding "a 'strong presumption of reasonableness attaches to the actions of the
administrative agencies'") (quoting In re Vey, 272 N.J. Super. 199, 205 (App.
Div. 1993)).
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An appellate court "ordinarily should not disturb an administrative
agency's determinations or findings unless there is a clear showing that (1) the
agency did not follow the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial evidence." In
re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,
422 (2008); see also Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(noting that the abuse of discretion standard is established "when a decision is
'made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis'") (quoting Achacoso-Sanchez v.
Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Furthermore, we recognize the Division's experience and expertise in
matters concerning discrimination and violations of civil rights. The Attorney
General and the Director of the Division "have extensive, discretionary authority
to investigate and insure compliance with the LAD." Gallo v. Salesian Soc.,
Inc., 290 N.J. Super. 616, 650 (App. Div. 1996). The Director "may initiate and
conduct an investigation to determine whether any entity, organization, industry,
groups of industries, business persons, or groups of business persons, or other
groups of persons are complying the [LAD] . . ." N.J.A.C. 13:4-4.8.
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N.J.A.C. 13:4-10.2(a) provides that upon completion of an investigation
of a verified complaint, the Director "shall determine whether or not probable
cause exists to credit the allegations of the verified complaint." N.J.A.C. 13:4-
10.2 further provides:
(b) If the Director determines based upon a review of
the investigative findings that there is a reasonable
ground of suspicion supported by facts and
circumstances strong enough in themselves to warrant
a cautious person to believe that the [LAD] . . . has been
violated, they shall issue a finding of probable cause.
(c) If the Director determines based upon review of the
investigative findings that there is not a reasonable
ground of suspicion supported by facts and
circumstances strong enough in themselves to warrant
a cautious person to believe that the [LAD] . . . has been
violated, they shall issue a finding of no probable cause.
[Id.]
In Pasquince v. Brighton Arms Apartments, we summarized the
requirements for establishing a prima facie case of rental housing discrimination
and explained the "burden shifting" template used in resolving those claims. 378
N.J. Super. 588, 599 (App. Div. 2005). Under this analytical template, the
plaintiff initially bears the burden to establish: "(1) plaintiff is in the class of
persons [the statute] is intended to protect; (2) defendant was aware that plaintiff
is a member of the protected class; (3) plaintiff was ready and able to accept
defendant's offer to rent or lease; and [defendant] refused to rent an apartment
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to plaintiff." Id. at 559 (alterations in original). Once a prima facie case is
established, "[t]he burden of production then shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for denying the plaintiff's rental
application." Ibid. (internal footnote omitted). If the defendant successfully
meets the burden of production, "the plaintiff then bears the burden of proving
that the defendant's articulated reason was merely a pretext for unlawful
discrimination." Ibid.
Applying these legal principles to the record before us, we conclude the
Division conducted a fair and thorough investigation during which it obtained
documents from both parties and conducted witness interviews. The record
shows the Division carefully considered the evidence Dew offered in support of
his claims. The Division also carefully considered S. Columbia's explanations
for its decision and the evidence provided in support of its affirmative defenses
and counterclaim. There is ample evidence in the record supporting the
Division's conclusion that S. Columbia provided legitimate, nondiscriminatory
reasons for its decision not to renew Dew's lease. These reasons included his
failure to pay rent for several months, his failure to replenish his security
deposit, and his failure to accept a new lease. Accordingly, applying our
deferential standard of review, there is no basis upon which to disturb the
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Division's finding that there was no probable cause to support Dew's complaint
and its decision to close the case.
To the extent we have not addressed them, any remaining arguments
raised by Dew lack sufficient merit to warrant discussion in this opinion. Rule
2:11-3(e)(1)(E).
Affirmed.
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